Director of Public Prosecutions v Badem
[2015] VCC 1585
•9 NOVEMBER 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BADEM (Is a Pseudonym) |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 NOVEMBER 2015 | |
DATE OF SENTENCE: | 9 NOVEMBER 2015 | |
CASE MAY BE CITED AS: | DPP v Badem | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1585 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr W Stougiannos | |
| of Public Prosecutions | ||
| For the Accused | Mr C Matthews |
HIS HONOUR:
1 Nesim Badem[1], on 15 October 2015, a jury of 12 unanimously convicted you of a charge of maintaining a sexual relationship with a child under 16 years of age. This child was your only daughter.
[1]Is a Pseudonym
2 This offence has a maximum penalty of 25 years’ imprisonment.
CIRCUMSTANCES OF YOUR OFFENDING
3 You have been convicted by a jury of one charge of maintaining a sexual relationship with a child under 16 years of age. The main evidence of your offending was given by your daughter. The other substantial evidence in this case came from your wife. The jury have accepted the evidence of your daughter and your wife to the standard of beyond reasonable doubt. The jury have rejected your denials in the “pretext” call and the record of interview with police.
4 The nature of your offending involved three types of sexual offending against your daughter. The first type of offending was an indecent act with or in the presence of your daughter. The indecent acts included touching or rubbing her vagina, making her masturbate your penis, ejaculating onto her, placing your penis between her buttocks or near her anus.
5 The second type of sexual offending against your daughter was sexual penetration of her. The sexual penetration was either by putting your penis in her mouth or by introducing your tongue into her vagina. The third type of sexual offending against your daughter was attempted sexual penetration of her anus.
6 In the particulars set out in the Statement of Offence, there were 15 separate occasions representing 16 separate instances of sexual offending by you. The jury had to be satisfied beyond reasonable doubt that on at least three of those occasions you had offended against your daughter. The three occasions had to be the same occasions. The jury was so satisfied by their verdict of guilty.
7 Your daughter made no allegations against you of digital or penile penetration of either her vagina or her anus.
8 I accept your daughter gave her evidence in a truthful and straightforward manner. Her ability to give precise dates and sequences of the precise allegations was compromised by her young age and the length of time over which your offending was inflicted upon her. Nevertheless, your daughter’s evidence was consistent and reliable when she was describing the actual events and the actions taken by you when you engaged in sexual activity with her.
9 I accept that the circumstances of your offending against your daughter are beyond reasonable doubt and consistent with the jury’s verdict are as follows:
10 (1) The offending commenced sometime in 2006 after your daughter’s 7th birthday. The incident described by her as being in your bedroom on the bed whilst your wife was in the garden and could be seen out the window. This was the first occasion in the particulars of the offence and was an indecent act by you touching her in the vagina region.
11 (2) You attended upon your daughter in her bedroom on numerous occasions between the first event of sexual assault on her and before you moved into her room on a full-time basis some time in 2009/2010. In this period you engaged in indecent acts of masturbation in the presence of your daughter, ejaculating on her, making her masturbate your penis, watched pornographic material on a laptop with her present in her bedroom and rubbed her vagina with your fingers. This is the time that your daughter described as you would come “camping” in her room where you would sleep on a mattress on the floor in her bedroom.
12 (3) You moved into your daughter’s bedroom on a full-time basis from 2009/10 to 2011. In this period of time, your sexual offending against your daughter was more consistent and regular. The sexual offending included indecent acts of masturbation, introducing your penis into her mouth and your tongue into her vagina, and on at least one occasion attempting to introduce your penis into her anus. I accept that your daughter attended her general practitioner for treatment for anal pain in that period of time after this event. I accept her explanation of not complaining to the general practitioner of your offending. The fact that the general practitioner’s notes and medical report do not describe trauma injuries to your daughter’s anal region do not detract from this finding as the general practitioner was not given a full and proper history by your daughter, for the reasons of not disclosing your offending. I accept her evidence on this issue. During some of these offending events, you have shown your daughter pornography on a laptop in her bedroom.
13 (4) You have committed indecent acts outside of the family home against your daughter. On one occasion, you made your daughter masturbate your penis whilst you were driving a van up to a farm at Woodend. On that occasion, your youngest son was in the van and asleep. On another occasion, you were touching your daughter’s vagina whilst she was under a blanket and seated with you on a couch at your mother’s home in Footscray. Your mother was seated on a couch opposite you whilst you were committing this incident act upon your daughter. These two occasions show the brazen nature of your offending against your daughter.
14 (5) In 2011, you moved from your daughter’s bedroom into the bedroom that had been vacated by your youngest son. Your daughter was then 12 years of age in that year. I find you did not offend against your daughter from that time until the early time of 2013.
15 (6) I accept that on an occasion when you attended at the farm at Woodend and stayed in the caravan with your daughter, you inserted your penis in her mouth. On that occasion, you had a banana flavoured condom on your penis and you had asked her to taste it. This was the only time you used “protection”, in your sexual activities with your daughter.
16 In early 2013, you committed an indecent act against your daughter by placing your hand down her pants and touching her buttocks. On this occasion, your daughter rejected your advances and in effect told you off. She turned 14 years old shortly after this event. This was your last incident of offending against your daughter.
17 On September 5, 2013, you were arrested and interviewed by police about the allegations made by your daughter. In a very lengthy record of interview, you denied any offending and suggested that the allegations were raised to get you “out of the house”.
18 You conducted a contested Committal on 21 May 2015. The trial in this case, including pre-trial argument and evidence before the jury and jury’s deliberations took nine days. You maintain your denials in respect of any and all of the allegations made by your daughter of sexual offending against her.
IMPACT ON YOUR VICTIM
19 Your daughter filed a victim impact statement dated 23 October 2015. It was read into the record on the day of your plea, 26 October 2015. Your daughter set out how she had suicidal thoughts as a result of your offending. She has difficulty sleeping and has nightmares on a regular basis. Your daughter takes sleeping tablets to assist her with her sleeping problem.
20 Your daughter has received treatment from counsellors, psychologists and a psychiatrist. She has been diagnosed with severe depression, anxiety and post-traumatic stress disorder. She has in the past had antidepressant medication but no longer takes it. Your daughter continues to have counselling sessions over two years since reporting your offending to police. She says she has reduced capacity at school because of your offending.
21 Exhibit C on the plea was a report dated 30 September 2014 prepared by Dr Germaine Gergis. Dr Gergis diagnosed your daughter with post-traumatic stress disorder and stated it was in remission at this time. Dr Gergis said that psychiatric intervention was trialled on your daughter for six weeks but was of little effect to her. Counselling and individual therapy has been more successful in treating your daughter and continues to this time.
22 Your wife also filed a victim impact statement dated 23 October 2015. That was Exhibit B. Your wife, the mother of the victim of your offending, confirms that your daughter has nightmares and is unable to cope at school. The treatment received by your daughter is confirmed in your wife’s victim impact statement. Your wife is very concerned for the welfare of your daughter as she grows into adulthood. It is clear from the victim impact statement that your offending has had a profound effect on the psychological wellbeing of your daughter.
PERSONAL CIRCUMSTANCES
23 I turn to your personal circumstances. You were born in Turkey in 1949. You are now 66 years old. Between the age of 57 and 62 years old, you offended against your daughter. You are the second child of four. Your father was a tailor and your mother assisted in the shop when not caring for you and your siblings. You completed secondary school, but your parents could not afford to send you to university. You grew up in Cyprus. In 1963, you were caught up in the civil war in Cyprus between the Greek Cypriots and the Turkish Cypriots.
24 In January 1974, you commenced an arranged marriage with your wife. Shortly after the wedding, you moved from Cyprus to Australia. You have a good work record, initially at Ford and then 10 years at a tyre company. In 1980, your parents moved to Australia. In 1989, you graduated from a Diploma of Civil Engineering. You and your wife went to Cyprus for a holiday and you missed an opportunity to enrol in the Degree of Engineering.
25 You commenced work at a real estate agency for two years. In conjunction with your wife, you conducted a sandwich business at North Melbourne and Brunswick for a period of six years. More recently and over the period of your offending, you have been working in the transport industry as a driver. Initially you were a van driver and then a prime mover driver for a Transport company. You worked long hours in the transport industry.
26 You have three sons and a much younger daughter, the victim of your criminality. You had an unhappy married life which resulted in you moving out of the matrimonial bedroom in 2009/10. You remained in the family home, which was purchased in 1999, until your arrest for this offence.
27 Until the date of your conviction by the jury, you lived in a unit with your mother in Melton. In the fortnight prior to the trial, you were hospitalised for two days with chest and left arm pain. Since your incarceration, you have complained of shortness of breath and on occasion have been assaulted by other inmates.
HARDSHIP FOR PRISONERS MOTHER
28 At your plea on 26 October 2015, your mother was called to give evidence. The purpose of her evidence was to establish exceptional circumstances which would activate a judicial discretion to exercise mercy in sentencing you for this offence.
29 Your 84-year-old mother gave evidence from a wheelchair in court. Your mother required the assistance of a Turkish interpreter. It was established that your mother had become dependent upon you since your arrest for assistance in cooking, maintaining the household and doing the shopping.
30 Your mother said that her legs were bad and needed injections in them. Your mother stated she used a stroller to be mobile. A bag the size of a football which contained all of her current medications was on display on the Bar table. Your mother suffers from fluid retention due to her heart condition. The Court was not provided with a medical report from your mother’s general practitioner or physician. I accept that at the age of 84, your mother does not enjoy robust health.
31 I accept that your incarceration in prison will result in hardship for your elderly mother. However, you have a brother in Perth and a brother and sister who live in Turkey. There was evidence that your Perth-based brother lived in a small unit in an assisted living complex. There was scant evidence of the circumstance of your siblings in Turkey. Your Turkey-based siblings do not know of your current predicament. Your mother has a Turkish passport and aside from you, no living connections here in Victoria that can assist her. She is estranged from your children and wife.
32 In recent years, your mother has travelled to Turkey and lived with your sister for some two years. As this option of relocating your mother to Turkey has not been explored within your family, I cannot be satisfied that the hardships you rely upon for exercise of sentencing mercy amounts to exceptional circumstances as is required by the law. The Court of Appeal in Markovic’s case stated:
“The common law requirement of ‘exceptional circumstances’ accepts that an offender is entitled to call for an exercise of mercy on the ground of family hardship, but confines the exercise of that discretion to a case where the circumstances are shown to be exceptional. Once that is understood, it becomes plain that there can be no residual discretion to be ‘merciful’ on grounds of family hardship in a case where the threshold test of ‘exceptional circumstances’ is not satisfied. For it is the ‘residual discretion’ to exercise mercy which is engaged when – but only when – the test is satisfied.”
33 In your case, I am not satisfied that the hardship for your mother reaches the threshold test of ‘exceptional circumstances’.
34 The Court of Appeal has also dealt with the law on the effect of the family member hardship on you, the offender. In a case such as this, there is a juxtaposition of your daughter who is the victim of your offending and your mother who it was submitted on your behalf will suffer hardship due to your incarceration.
35 In Markovic’s case again, the Court of Appeal stated:
“The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor – for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation. These are conventional issues of mitigation, and they are not subject to the ‘exceptional circumstances’ limitation.”
36 I accept that your time in prison will give rise to anguish on your part because you will not be able to care for your elderly mother. Your anguish will continue until your siblings or extended family are involved in the future care and responsibility for your mother.
SENTENCING CONSIDERATIONS
37 The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and the protection of the community.
38 In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for them and your personal circumstances and those of your victim.
39 I am required to balance the interests of the community in denouncing your criminal conduct and to ensure, as far as possible, you, as an offender are rehabilitated and reintegrated into society.
40 As part of the governing principles to be considered in sentencing, I must take into account the current sentencing practices. That enquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics at the time of the sentence. I have considered these statistics and current practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. I also take into account the sentencing practices at the time of your offending. Each case again has its own distinguishing features and may be distinguished from yours, as from one another.
41 Counsel referred me to the Sentencing Snapshots for the charge of persistent sexual abuse of a child under 16 years. I was also referred to a number of cases from the Court of Appeal. In particular: BM v The Queen [2013] VSCA 3; George Bussell (a Pseudonym) v The Queen [2014] VSCA 310; Wallace Cummins (a Pseudonym) v The Queen [2013] VSCA 352; DPP v DDJ [2009] VSCA 115; and other cases dealing with this type of offending.
42 I have taken into account the pronouncements of the Court of Appeal in those cases and the other cases on sentencing in respect of sexual offending against biological children in arriving at your sentence.
43 The offences of sexual offending against your biological child strikes at the very heart of the most important building block in a civilised society, the family. The prevalence of the crime of sexual offending in the community erodes the decency of family life and the trust and confidence of its young victims. Such crimes call for punishment to reinforce the principle of general deterrence, denunciation and protection of young people.
44 Whilst you have not been charged with the offence of incest, some of the agreed offending by you encompasses all the elements of incest.
45 In the case of DPP v G [2002] VSCA 6, the President of the Court of Appeal set it out clearly:
“The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care will not abuse the trust and confidence reposed in them by those in their charge. Parents - and those in loco parentis - who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished.”
46 The charge for which you have been convicted is a course of conduct offence which includes various types of sexual offending on a number of occasions over an extended period of time. This has a twofold relevance in sentencing. First, it is to be understood as the absence of a mitigating factor has been an isolated event. Secondly, it provides a wider context for your offending.
47 A conviction under s.47A of the Crimes Act means that you are to be sentenced as a serious sexual offender under the provisions of the Sentencing Act 1991. The prosecution did not call for a disproportionate sentence in your case.
48 The aggravating features of your offending are:
(i) You continued your offending over an extended period of time – 4 years.
(ii) Your daughter was approximately aged between of seven and 11 years of age for the main part of the offending.
(iii) You were aged between 57 and 62 in that same time. The age difference between yourself and your daughter was approximately 50 years.
(iv) You have not used protection during the course of your sexual penetration acts, except for that one occasion where a banana condom was used.
(v) The occasion referred to in Charge 1 had elements of where you exercised domination and control over your very young daughter and showed that you were determined to engage in sexual activity with her, when and where you wanted to.
(vi) You used psychological control by saying that you would hate your daughter if she told or reported the offending and that you would go to gaol and that you had to sleep.
(vii) The offending was more persistent when you moved into her bedroom and effectively ceased when you moved to your son’s vacated bedroom. However, you attempted to rekindle your offending in early 2013 and only stopped finally when your daughter told you not to and in effect told you off.
(viii) Your offending on occasion was brazen and designed to further humiliate your daughter.
(ix) You showed pornography to your daughter in the course of some of your offending events.
(x) You have no remorse for your offending and no empathy for your daughter who is your victim.
(xi) The offending is a gross breach of trust to your daughter and to your wife which is aggravated by the offending in the home where your child is entitled to feel safe from harm.
49 The mitigating features of your offending are that you did cease sexual offending against your daughter in 2011 when you moved out of her bedroom on a permanent basis. This was the end of your more persistent offending. There was only one instance of offending by you as an isolated event in 2013.
50 Whilst your offending was wide-ranging in its nature, your offending did not expose your daughter to the risk of juvenile pregnancy.
51 You are unlikely to reoffend in the future given your age and lack of opportunity now there has been a total breakdown in your family. You are previously of good character, without conviction, until this offending commenced in your late 50s.
52 You had a consistent and productive work and employment history. I assess your prospects of rehabilitation as good.
53 I have previously referred to the submission of hardship in respect of your mother. I do not accept that the threshold of exceptional circumstances has been reached. I take into account your recent heart condition and heart treatment when sentencing you.
54 The nature of your offending against your daughter is very serious and calls for stern punishment. The principle of general deterrence, just punishment and denunciation of criminal conduct call for a term of imprisonment.
55 Would you stand, please.
56 On Charge 1, you are convicted and sentenced to seven and a half years’ imprisonment. That is a total effective sentence of seven and a half years’ imprisonment. The non-parole period I fix is five years.
57 I declare that you have served 25 days. Twenty-five days’ pre-sentence detention which is to be deducted administratively from your sentence.
58 Pursuant to s.6(f) of the Sentencing Act, I declare that you have been sentenced as a serious sexual offender.
59 I order that you be placed on a sex offenders register for life. This offence is a Class 1 offence.
60 I order pursuant to s.464ZF of the Crimes Act, that you provide a forensic sample and I will just explain to you what that means.
61 The authorities are authorised to take a forensic sample from you. That is done by taking a swab from your mouth. If you do not agree to that being taken, they are authorised to use reasonable force to obtain such a sample.
62 Do you understand that, Mr Badem? Thank you.
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